Martin v. Young, 1596

• Decision Date: 12 July 1983
• Docket Number: No. 1596,1596
• Citation: 55 Md.App. 401,462 A.2d 77
• Parties: , 40 A.L.R.4th 183 Gladys A. MARTIN v. W. Meredith S. YOUNG, et al.
• Court: Court of Special Appeals of Maryland

Page 401

55 Md.App. 401

462 A.2d 77, 40 A.L.R.4th 183

Gladys A. MARTIN v. W. Meredith S. YOUNG, et al.

No. 1596.

Court of Special Appeals of Maryland.

July 12, 1983.

Cleopatra Campbell, Frederick, for appellant.

John M. Robinson, Baltimore, with whom was Seymour B. Stern, P.A., Frederick, on brief, for appellees.

Argued before LISS, GARRITY and GETTY, JJ.

GETTY, Judge.

The single issue presented in this case is whether the trial court erred in granting the Motion for Summary Judgment filed on behalf of W. Meredith S. Young and The Fredericktown Bank and Trust Company, appellees, and failing to grant a similar motion filed on behalf of Gladys A. Martin, the appellant. For the reasons hereinafter set forth, we hold that neither party is entitled to summary judgment, and we reverse and remand for trial.

THE FACTS

Genevieve T. Fravel, a resident of Frederick County, died on the 28th day of March, 1981. She was eighty-five years of age at the time of her death. On December 30, 1968, Mrs. Fravel executed a Last Will and Testament containing substantial bequests to various relatives, friends and organizations. The remainder of her estate was divided into two charitable remainder trusts and a residuary trust. W. Meredith S. Young and The Fredericktown Bank & Trust Company were named as executors and trustees.

On October 7, 1971, Mrs. Fravel executed a First Codicil deleting several provisions from the original instrument and adding several specific bequests. Included among the latter is the following bequest that is the subject matter of this proceeding:

11. I devise the lot of ground and the house thereon which I use as my personal residence at the time of signing this Codicil, located at 12 West 12 th Street, Frederick, Maryland, unto GLADYS A. MARTIN (Mrs. Thomas E. Martin) of Walkersville, Maryland, if she survives me and is in my employee (sic) at the time of my death; and if she predeceases me or Thereafter, on July 14, 1976, Mrs. Fravel executed a Power of Attorney naming Fredericktown Bank & Trust Company as Attorney in Fact. Although the bank had the authority, under paragraph eleven of the Power of Attorney, to employ or dismiss "any lawyer, accountant, physician, nurse, agent, clerk, servant or any other person" it did not exercise the power until five days before Mrs. Fravel's death at which time it moved her to a nursing home and advised Mrs. Martin that her services were no longer required. This action precluded Mrs. Martin from satisfying the condition entitling her to the devise of the residence, i.e., that she be in Mrs. Fravel's employ at the time of her death.

is not in my employ at the time of my death, this devise shall lapse.

Charles F. Trunk, 3rd, Vice President and Trust Officer of Fredericktown Bank & Trust Company stated in a deposition on June 3, 1982, that the decision to move Mrs. Fravel to a nursing home was due to the escalating costs of keeping a full staff in the home. He denied that the bank had any knowledge that Mrs. Martin's dismissal would void the bequest to her.

Mrs. Martin worked for Mrs. Fravel on a full time basis from December 1, 1969, through March 22, 1981. During the last two years of her life, Mrs. Fravel was mentally incompetent and confined to her bed most of the time.

An equity proceeding was filed on behalf of the appellant, Martin, on August 13, 1981, seeking construction of the Last Will and Testament and alleging substantial compliance with the condition precedent. On June 9, 1982, after the depositions of Mrs. Martin, Mr. Young and Mr. Trunk had been completed, the appellant filed a Motion for Summary Judgment.

In responding to the motion, the appellee alleged, alternatively, that the facts and inferences to be drawn therefrom raised serious questions of fact regarding the equities. One clear inference, according to the appellees, was that Mrs. Martin extracted monies from the Fravel household utilizing them for her own benefit.

The case was set for trial on July 2, 1982, and on the morning of trial the appellees filed their Motion for Summary Judgment, pursuant to Md.Rule 610, alleging that where there is no ambiguity in the terms of a Will, the trial court is compelled to apply the "four corners" of the Will to the facts presented. Citing Wesley Home Inc. v. Mercantile Safe Deposit & Trust Co., 265 Md. 185, 289 A.2d 337 (1972) and Fersinger v. Martin, 183 Md. 135, 36 A.2d 716 (1944), the trial court granted appellees' motion; this appeal followed.

THE LAW

Appellant and appellees agree that the single case in Maryland dealing with a devise or bequest subject to a condition precedent is Pacholder v. Rosenheim, 129 Md. 455, 99 A. 672 (1916).

Mitchell S. Pacholder executed a Will in 1896. He died in 1914. One clause of the decedent's Will provided that his niece, Edith, was to receive $5,000 at the time of her marriage provided that the marriage was with the consent of her surviving parent or parents and provided further that she not marry outside the Jewish faith.

Edith married within her faith, but eloped. Her parents gave their assent after the fact. The court was asked to hold that the subsequent assent of the parents is the substantial equivalent of the antecedent consent so as to constitute compliance with the condition. The court stated that the testimony did not establish that the testator had waived the condition either before the marriage took place or within the two and one half years from the date of the marriage until the testator's death.

In referring to the applicable law, the court cited the general rule as laid down in 40 Cyc. 1719 recognizing that marriage conditions require substantial performance unless a waiver occurs. The court then set forth the facts in two American cases, ¹ relied upon by the editor of Cyc. as authority for the substantial compliance doctrine, and concluded that the American cases did not support the doctrine as alleged in Cyc.

Three significant differences between Pacholder and the present case are readily apparent. First, in Pacholder the testator had two years and six months to change the condition if he so desired; in the present case the testatrix had no such opportunity at least during the last two years of her life, due to her physical and mental state. Second, the beneficiary in Pacholder wilfully violated the condition; in the present case the beneficiary was precluded from complying with the condition by the actions of the appellees which were beyond her control. Third, Pacholder involved specified behavior on the part of the legatee; the present case relates to impossibility of performance.

With regard to the present state of the law in other jurisdictions, the following cases recognize the doctrine of substantial performance: In Re Bridges Estate, 41 Wash.2d 916, 253 P.2d 394 (Wash.1953); Cantillon v. Walker, 146 Me. 160, 78 A.2d 782 (Me.1951); Estate of Mollard, 98 So.2d 814 (Fla.App.1957); In Re Costalo's Will, 167 Misc. 755, 4 N.Y.S.2d 665 (N.Y.1957); Seeley v. Hincks, 65 Conn. 1, 31 A. 533 (Conn.1894); Wooster School Corp. v. Hammerer, 410 So.2d 524 (Fla.App.1982).

Jurisdictions holding that a bequest lapses upon failure to comply with a condition precedent include: Traders Nat. Bank of Kansas City v. Levine, 528 S.W.2d 497 (Mo.App.1975); Guilliams v. First Nat. Bank of Leesburg, 229 So.2d 633 (Fla.App.1969). The Florida cases appear to be decided upon a case by case basis or to restrict the doctrine of substantial compliance to cases involving personalty. The overwhelming weight of authority today, unlike the 1916 Pacholder...